U.S. v. Trammel

• Decision Date: 11 October 1978
• Docket Number: No. 76-1834,76-1834
• Citation: 583 F.2d 1166
• Parties: 3 Fed. R. Evid. Serv. 407 UNITED STATES of America, Plaintiff-Appellee, v. Otis TRAMMEL, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1166

583 F.2d 1166

3 Fed. R. Evid. Serv. 407

UNITED STATES of America, Plaintiff-Appellee, v. Otis TRAMMEL, Jr., Defendant-Appellant.

No. 76-1834.

United States Court of Appeals Tenth Circuit.

Argued and Submitted Dec. 14, 1977.

Decided Oct. 11, 1978.

Joseph F. Dolan, U. S. Atty., Denver, Colo. (James L. Treece, former U. S. Atty., and Rodney W. Snow, Asst. U. S. Atty., on the brief), for plaintiff-appellee.

Frederick A. Fielder, Jr., Fielder & Wiggins, P. C., Denver, Colo., for defendant-appellant.

Before McWILLIAMS, BARRETT and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

Otis Trammel, Jr. appeals his conviction, following a trial by jury, of the offenses of importation of heroin, 21 U.S.C.A. § 952(a), and conspiracy to import heroin, 21 U.S.C.A. §§ 962(a), 963 (1970). Trammel was tried jointly with two co-defendants, Edwin Lee Roberts and Joseph Freeman. The three had been charged, by indictment, with importation and conspiracy to import heroin.

The three were charged with conspiracy to transport heroin from the Philippines to the United States and with the actual importation of heroin. None of the three defendants testified at trial. The government's case was substantially anchored to the testimony of two unindicted co-conspirators, Janice Keenan, a friend of Edwin Lee Roberts, and Elizabeth Trammel, wife of appellant Otis Trammel, Jr. Janice Keenan and Elizabeth Trammel had been granted immunity from prosecution in return for their testimony.

Prior to trial, appellant moved to sever his trial from that of Roberts and Freeman, or, in the alternative, to prevent his wife, Elizabeth Trammel, from testifying against him.

On appeal, Trammel contends that the trial court committed reversible error by allowing his wife to testify against him over his objection and without his consent. He asserted, of course, the husband/wife privilege which prevents one spouse from giving testimony adverse to the other without his or her consent. We hold that the trial court did not err in admitting the testimony of Elizabeth Trammel.

The court did exclude evidence of confidential communications between the Trammels. However, the court denied Otis Trammel's assertion of the husband/wife testimonial privilege.

Trammel argues that the trial court erred in admitting the testimony of his wife, Elizabeth, against him because they were validly married at all times charged, the charges do not involve an assault by him against her and the charges do not involve an assault by him against children of their marriage. The Government argues that Elizabeth Trammel's testimony was properly admitted inasmuch as it was limited to acts as distinguished from Communications and to statements of Otis Trammel made in the presence of third parties. Thus, the government reasons that the privilege does not arise. Further, the government contends that even if the communications could be considered confidential and privileged, still they would not be protected from disclosure where both spouses participated in the unlawful enterprise.

Trammel relies primarily on Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958). That opinion does re-affirm the long-standing common law rule which prohibits one spouse from either voluntarily or under compulsion testifying against the other spouse in a criminal prosecution wherein the other spouse is a defendant, unless the other spouse consents thereto. The Supreme Court stated that "The rule rested mainly on a desire to foster peace in the family and on a general unwillingness to use testimony of witnesses tempted by strong self-interest to testify falsely." 358 U.S. at p. 75, 79 S.Ct. at p. 137. Nothing in Hawkins or any other reported decision, to our knowledge, prohibits the voluntary testimony of a spouse who appears as an unindicted co-conspirator under grant of immunity from the Government in return for her testimony.

The crux of the common-law rule in the case of a defendant husband, as here, is that the exclusion of the wife's testimony is required in order to prevent ill feeling against her on the husband's part for her revelation of the truth. Thus, the privilege is that of the defendant spouse preventing the other spouse from testifying against him without his consent. Hawkins v. United States, supra; United States v. Apodaca, 522 F.2d 568 (10th Cir. 1975); United States v. Harper, 450 F.2d 1032 (5th Cir. 1971); United States v. Moorman, 358 F.2d 31 (7th Cir. 1966), Cert. denied, 385 U.S. 866, 87 S.Ct. 127, 17 L.Ed.2d 93; Peek v. United States, 321 F.2d 934 (9th Cir. 1963), Cert. denied, 376 U.S. 954, 84 S.Ct. 973, 11 L.Ed.2d 973 (1964).

Hawkins, supra, and other decisions involving the same issue, have stressed that the courts have the right and the responsibility to examine the policies behind the federal common law privileges and to alter, modify or amend them when reason and experience so demand.

In our view, a compelling need to alter or amend the common-law rule enunciated in Hawkins is dictated by "reason and experience" in the instant case. The witness, Elizabeth Trammel, was a co-conspirator, a participant in the heroin importation scheme and transaction. As such, she was subject to prosecution. The federal immunity statutes, 18 U.S.C. §§ 6001-6005, represent an accommodation between the right of the government to compel testimony on the one hand, and the constitutional privilege to remain silent, on the other. United States v. Tramunti, 500 F.2d 1334 (2nd Cir. 1974), Cert. denied, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673 (1974). The purpose of the grant of immunity is to reach the truth, and when that testimony is incriminatory, it cannot be used against the witness. The Congressional intent, then, is that the statutory claim of immunity be as broad as, but no broader than, the privilege against self-incrimination. Childs v. McCord, 420 F.Supp. 428 (D.C.Md.1976), affirmed, 556 F.2d 1178 (4th Cir. 1977).

A defendant has no standing to contest the propriety of the grant of immunity to a witness. United States v. Rauhoff, 525 F.2d 1170 (7th Cir. 1975). Otis Trammel, as a defendant, thus was without standing to challenge the grant of immunity to his wife, Elizabeth, unless the privilege asserted by reason of the marital relationship is such that the rule of "reason and experience" mandates that the privilege asserted overrides the grant. We hold that it does not.

In our view the allegiance reaffirmed in Hawkins, supra, to the marital testimonial privilege grounded on the policy of preserving or fostering family peace must give ground to a greater, more compelling public need before us here. This case, unlike Hawkins and other like cases, involves the wife as a participant in the criminal transaction, subject to prosecution therefor. It matters not, in this context, that the witness granted immunity is the spouse of one of the defendants. The common law did not fail to recognize that the rule of privilege between husband and wife was subject to some exceptions, generally premised on the ground of necessity. The necessity was that of avoiding an extreme injustice to the excluded spouse which would ensue upon an undeviating enforcement of the rule. Accordingly, an exception which has been widely recognized in order to protect both the husband and wife arises in cases involving a crime perpetrated by one spouse against the other, termed a "personal wrong." The predicate, of course, is that it is illogical to believe that marital peace can be achieved or promoted by denying a wife who has been beaten, deserted or otherwise badly maltreated the right to testify against her husband about those wrongs. 8 Wigmore on Evidence, McNaughton Revision, Vol. VIII, § 2239.

The various judicial utterances on the matter of the exercise of the privilege establish that the privilege belongs to the Party spouse against whom the other is offered as a witness; however, it is firmly established that the privilege also belongs to the Witness spouse. See, generally, 81 Am.Jur.2d, Witnesses, Husband and Wife, §§ 148-171; Wigmore on Evidence, McNaughton Ed., Vol. VIII, Ch. 79, §§ 2227-2245; United States v. Cameron, 556 F.2d 752 (5th Cir. 1977).

None of the decisions applying the unvarying prohibition rule, i. e., that one spouse may not give testimony against the other without his or her consent, involve the fact situation presented here: Where both the husband and wife have jointly participated in a criminal conspiracy, both are subject to prosecution, and one spouse testifies against the interest of the other under grant of immunity. However, in United States v. Smith, 520 F.2d 1245 (8th Cir. 1975), the court held that in a prosecution of a husband and wife jointly charged with conspiracy, statements made by either inculpatory to the other during the course of and in furtherance of the conspiracy were admissible. See, also, 16 Am.Jur.2d, Conspiracy, § 41.

A claim of the Fifth Amendment privilege is a prerequisite to the grant of immunity. Thus, the constitutional privilege cannot be violated before it can be invoked. In the case at bar, then, Elizabeth Trammel did invoke her Fifth Amendment privilege against self-incrimination. Having done so, she brought herself as a party to the criminal transaction within the rule that she who would have the benefit of the privilege must claim it.

This court has held that a defendant husband, in a criminal proceeding, cannot avail himself of the asserted marital privilege preventing the Government from presenting inculpatory testimony of his spouse where the marriage was found to have been entered into fraudulently. United States v. Apodaca, 522 F.2d 568 (10th Cir. 1975). We hold that, to like effect, a defendant husband who has jointly participated in a criminal conspiracy with his wife cannot prevail upon his claim of the marital privilege when his wife gives incriminating testimony under grant of immunity.

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